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HomeMy WebLinkAbout06-530 Toft, Jr.John Toft, Jr. 19 Pin Oak Drive White Haven, PA 18661 Re: Public Official; Statement of Financial Interests; Financial Disclosure Requirements; Conflict of Interest. Dear Mr. Toft: ADVICE OF COUNSEL March 22, 2006 This responds to your letter of February 14, 1006, by which you requested advice from the State Ethics Commission. Issue: Whether the financial disclosure provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §§ 1104 -1105, would require a school director to disclose on his Statement of Financial Interests: (1) defined pension plans, stocks in a 401 K account, and social security retirement payments as direct /indirect sources of income; and (2) a financial interest in a company that comprises less than 5% of the equity of the business; and whether under the Ethics Act, the school director would have a conflict of interest in participating in matters that would generate business for two separate businesses from which the school director is currently drawing a pension. Facts: As a School Director for the Weatherly Area School District ( "School District "), you seek guidance in filling out your Statement of Financial Interests ( "SFI "). You are retired and receive a pension from Houghton Mifflin Company ( "Houghton Mifflin "), which is a major publisher of textbooks and other instructional materials. You state that your pension is a defined pension that does not increase or decrease based upon the profits of Houghton Mifflin. You further state that you do not own any Houghton Mifflin stock. In addition, you receive a pension from McGraw -Hill, another major publisher of instructional materials. You indicate that the McGraw -Hill pension is also a defined pension that is not affected by profits. Finally, you own stock in McGraw -Hill through what remains in your 401K account. You state that you have several hundred shares of stock options that you will be exercising in the future, which are only a minute part of the millions of McGraw -Hill shares. Based upon the foregoing facts, you pose the following inquiries: 06 -530 Toft, 06 -530 March 22, 2006 Page 2 1. Whether you must list your Houghton Mifflin pension in Block 10 of your SFI as a direct /indirect source of income; 2. Whether as a School Director you must abstain from voting on any motion that will give business to Houghton Mifflin; 3. How and whether you must disclose your stock interests in McGraw -Hill that remain in your 401 K on your SFI; 4. How and whether you must disclose your McGraw -Hill stock options on your SFI; 5. Whether you must abstain from voting on motions that will give business to McGraw -Hill. 6. Whether it is best for you to declare your financial interests in Houghton Mifflin and McGraw -Hill to avoid any appearance of impropriety; 7. Whether you must list Social Security in Block 10 of your SFI as a direct /indirect source of income. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all of the material facts. As a School Director, you are a public official as that term is defined in the Ethics Act, and hence you subject to the provisions of that Act. Section 1103(a) of the Ethics Act provides: § 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). The following terms are defined in the Ethics Act as follows: § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business Toft, 06 -530 March 22, 2006 Page 3 with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. "Financial interest." Any financial interest in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness. "Income." Any money or thing of value received, or to be received as a claim on future services or in recognition of services rendered in the past, whether in the form of a payment, fee, salary, expense, allowance, forbearance, forgiveness, interest, dividend, royalty, rent, capital gain, reward, severance payment, proceeds from the sale of a financial interest in a corporation, professional corporation, partnership or other entity resulting from termination or withdrawal therefrom upon assumption of public office or employment or any other form of recompense or any combination thereof. The term refers to gross income and includes prize winnings and tax - exempt income. The term does not include gifts, governmentally mandated payments or benefits, retirement, pension or annuity payments funded totally by contributions of the public official or employee, or miscellaneous, incidental income of minor dependent children. 65 Pa. C. S. § 1102. Section 1103(j) of the Ethics Act provides as follows: § 1103. Restricted activities (j) Voting conflict. - -Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee who in the discharge of his official duties would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three - member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. Toft, 06 -530 March 22, 2006 Page 4 65 Pa.C.S. § 1103(j). Section 1104 of the Ethics Act provides, in pertinent part: §1104. Statement of financial interests required to be filed (a) Public official or public employee. - -Each public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the commission no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Each public employee and public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the department, agency, body or bureau in which he is employed or to which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Any other public employee or public official shall file a statement of financial interests with the governing authority of the political subdivision by which he is employed or within which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Persons who are full -time or part -time solicitors for political subdivisions are required to file under this section. 65 Pa.C.S. §1104 (a). Section 1105 of the Ethics Act provides as follows: § 1105. Statement of financial interests (a) Form. - -The statement of financial interests filed pursuant to this chapter shall be on a form prescribed by the commission. All information requested on the statement shall be provided to the best of the knowledge, information and belief of the person required to file and shall be signed under oath or equivalent affirmation. (b) Required information. - -The statement shall include the following information for the prior calendar year with regard to the person required to file the statement: (1) Name, address and public position. (2) Occupation or profession. (3) Any direct or indirect interest in any real estate which was sold or leased to the Commonwealth, any of its agencies or political subdivisions or purchased or leased from the Commonwealth, any of its agencies or political subdivisions or which was the subject of any condemnation proceedings by the Commonwealth, any of its agencies or political subdivisions. (4) The name and address of each creditor to whom is owed in excess of $6,500 and the interest rate thereon. However, loans or credit extended between members of the immediate family and mortgages securing real property Toft, 06 -530 March 22, 2006 Page 5 which is the principal or secondary residence of the person filing shall not be included. (5) The name and address of any direct or indirect source of income totaling in the aggregate $1,300 or more. However, this provision shall not be construed to require the divulgence of confidential information protected by statute or existing professional codes of ethics or common law privileges. (6) The name and address of the source and the amount of any gift or gifts valued in the aggregate at $250 or more and the circumstances of each gift. This paragraph shall not apply to a gift or gifts received from a spouse, parent, parent by marriage, sibling, child, grandchild, other family member or friend when the circumstances make it clear that the motivation for the action was a personal or family relationship. However, for the purposes of this paragraph, the term "friend" shall not include a registered lobbyist or an employee of a registered lobbyist. (7) The name and address of the source and the amount of any payment for or reimbursement of actual expenses for transportation and lodging or hospitality received in connection with public office or employment where such actual expenses for transportation and lodging or hospitality exceed $650 in the course of a single occurrence. This paragraph shall not apply to expenses reimbursed by a governmental body or to expenses reimbursed by an organization or association of public officials or employees of political subdivisions which the public official or employee serves in an official capacity. (8) Any office, directorship or employment of any nature whatsoever in any business entity. (9) Any financial interest in any legal entity engaged in business for profit. (10) The identity of any financial interest in a business with which the reporting person is or has been associated in the preceding calendar year which has been transferred to a member of the reporting person's immediate family. (c) Reporting amounts. -- Except where an amount is required to be reported pursuant to subsection (b)(6) and (7), the statement of financial interests need not include specific amounts for the items required to be listed. (d) Cost -of- living adjustments. - -On a biennial basis the commission shall review the dollar amounts set forth in this section and may increase these amounts to such rates as are deemed reasonable for assuring appropriate disclosure. The commission shall publish any such adjusted threshold amounts in the Pennsylvania Bulletin. 65 Pa.C.S. §1105. Having set forth the applicable provisions of the Ethics Act, your specific inquiries shall now be addressed. Toft, 06 -530 March 22, 2006 Page 6 In response to your first question, based upon the factual assumption that Houghton Mifflin has contributed in whole or in part to your pension, you would be required to list the name and address of the pension as a direct or indirect source of income in block 10 of your SFI. See, definition of income, 65 Pa.C.S. § 1102. In response to your second question, you are advised that pursuant to Section 1103(a), a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official/ public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. In each instance of a conflict, Section 1103(j) requires the public official /employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes or supervisor. Therefore, based upon your express factual representations that: (1) you do not own any Houghton Mifflin stock; and (2) the Houghton Mifflin pension does not increase or decrease based on the profits of the company, and conditioned upon the assumption that Houghton Mifflin is not a business in which you are an officer, owner, employee or have a financial interest, you would not have a conflict of interest under Section 1103(a) of the Ethics Act in participating in matters that would generate business for Houghton Mifflin such as textbook adoptions. In response to your third question, you would be required to list in block 10 of your SFI any McGraw -Hill stock in your 401 K that generated dividends, distributions, or capital gains totaling in the aggregate $1,300 or more. In response to your fourth question, you do not specify factually how much your McGraw -Hill shares are worth relative to the equity of the business. Therefore, it shall be assumed for purposes of this advisory that your financial interest in McGraw -Hill comprises less than 5% of the equity in that business such that you would not be required to list McGraw -Hill and its address in block 14 of your SFI. In response to your fifth question, you would have a conflict of interest under Section 1103(a) of the Ethics Act in participating in matters that would generate business for McGraw -Hill if it would cause the value of your McGraw -Hill stock to increase resulting in a financial benefit to you. Your sixth question regarding your interests in Houghton Mifflin and McGraw -Hill have been fully addressed above. It is parenthetically noted that in order for a conflict of interest to exist under the Ethics Act, each of the above statutorily - prescribed elements must exist. The mere potential appearance of impropriety will not suffice to establish a conflict of interest under the most recent versions of the Ethics Act (Act 9 of 1989, P.L. 26, 65 P.S. § 401 et seq., as codified by Act 93 of 1998, Chapter 11, 65 Pa.C.S. § 1101 et seq.; contra, Act 170 of 1978, Section 3(d)). In response to your seventh question, governmentally mandated payments such as social security retirement need not be listed as a direct /indirect source of income in block 10 of your SFI. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Conclusion: As a School Director for the Weatherly Area School District, you are a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Based upon the factual assumption that Houghton Mifflin has contributed in whole or in part to your pension, you would be required to list the name and address of the pension as a direct or indirect source of income in block 10 of your SFI. Based upon your express factual representations that: (1) you do not own any Houghton Toft, 06 -530 March 22, 2006 Page 7 Mifflin stock; and (2) the Houghton Mifflin pension does not increase or decrease based on the profits of the company, and conditioned upon the assumption that Houghton Mifflin is not a business in which you are an officer, owner, employee or have a financial interest, you would not have a conflict of interest under Section 1103(a) of the Ethics Act in participating in matters that would generate business for Houghton Mifflin such as textbook adoptions. You would be required to list in block 10 of your SFI any McGraw - Hill stock in your 401 K that generated dividends, distributions, or capital gains totaling in the aggregate $1,300 or more. Assuming for purposes of this advisory that your financial interest in McGraw -Hill comprises less than 5% of the equity in that business, you would not be required to list McGraw -Hill and its address in block 14 of your SFI. You would have a conflict of interest under Section 1103(a) of the Ethics Act in participating in matters that would generate business for McGraw -Hill if it would cause the value of your McGraw -Hill stock to increase resulting in a financial benefit to you. In order for a conflict of interest to exist under the Ethics Act, each of the above statutorily - prescribed elements must exist. The mere potential appearance of impropriety will not suffice to establish a conflict of interest under the most recent versions of the Ethics Act. Governmentally mandated payments such as social security retirement need not be listed as a direct /indirect source of income in block 10 of your SFI. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11), an Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, provided the requester has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. This letter is a public record and will be made available as such. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717- 787 - 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Vincent J. Dopko Chief Counsel